Arizona’s Newest Proof-of-Citizenship Law is Potentially Unconstitutional (Again)
January 11, 2023
By Sarah Bradley
Arizona has a well-known history of stringent anti-immigration laws and policies, from the widely covered “show me your papers” law—at the time, the strictest anti-immigration law in the country—to more recent busing of migrants to D.C., following Texas’s lead. In its most recent session, the state legislature has followed this trend, passing a law that echoes a previous attempt in 2004 that was later struck down.
On March 30, 2022, Arizona Governor Doug Ducey signed House Bill 2492 into law, jeopardizing the voter registrations of tens of thousands of state residents. HB 2492 requires voters to demonstrate proof of citizenship at registration or within 30 days of registering to vote, despite opposing Supreme Court precedent.
In 2004, Arizona passed Proposition 200, a highly restrictive anti-immigration law which included a provision requiring voters to present proof of citizenship. After multiple legal challenges, the Supreme Court eventually struck down the proof of citizenship requirement for federal elections. In 2013, the Court heard Arizona v. Inter Tribal Council of Ariz., Inc., ruling that the state could not impose this requirement on voters who use a federal voter registration form. A federal voter registration form, required by the National Voter Registration Act of 1993, is prepared by the U.S. Election Assistance Commission and allows registrants to vote in national elections. “Federal-only” voters are not required to provide proof of citizenship (some states may require proof of identification, a much lower burden). In response to this ruling, the Arizona legislature bifurcated the state’s voting system and imposed the proof-of-citizenship requirement on state and local elections. There are currently around 31,500 federal-only voters in Arizona.
The NAACP, in an amicus brief filed regarding Arizona v. ITC, noted that throughout the tenure of Proposition 200, Arizona found no instances in which an undocumented immigrant registered or voted in the state, yet rejected the registration applications of over 30,000 residents, with a disparate impact on the Latino population. HB 2492 is poised to have an even more destructive impact on voting access beyond the federal-only voters.
Critics of HB 2492 have argued that the new law would cause thousands of previously registered voters to lose their access to the polls. Proposition 200 included language that grandfathered in previously registered voters, but HB 2492 would supersede the old law and would retroactively apply the citizenship requirements. Marilyn Rodriguez, a lobbyist for the ACLU of Arizona, told the state Senate Government Committee prior to the passage that “thousands of eligible voters could lose access to the polls based on specific and targeted criteria. This bill singles out older voters, on average, and people who have lived in Arizona for a longer amount of time.” Additionally, proof of citizenship laws have historically had a discriminatory effect on communities of color.
Estimates of the numbers of voters losing access to the polls are as high as 192,000, the number of residents who were issued a driver’s license prior to 1996 and have not altered it since, according to the Arizona Department of Transportation. In 1996, the state began requiring drivers to provide proof of their lawful presence in the United States, and a license is one of very few ways that a resident may prove citizenship.
Governor Ducey, in his defense of the bill, cited the high number of federal-only voters in the 2020 election—over 11,600—as evidence of its necessity to prevent election fraud. The bill’s sponsor, Republican Rep. Jake Hoffman, claimed that it was necessary to protect elections from foreign interference. Hoffman supported former President Trump’s claims that the 2020 election was stolen and was one of the 84 people to act as a fake elector for Trump. He also runs a marketing firm that was banned from Facebook for engaging in “coordinated inauthentic behavior”, running a “troll farm” that advocated right-wing opinions on social media, including the claim that mail-in ballots would lead to fraud. Hoffman’s personal Twitter account was suspended prior to the 2020 election.
In July, the Department of Justice filed suit against the state, claiming that HB 2492 violates both Section 6 of the National Voter Registration Act and the Civil Rights Act of 1964. Kristen Clarke, Assistant Attorney General for the Civil Rights Division of the DOJ, called HB 2492 “a law that turns the clock back, by imposing unlawful and unnecessary requirements that would block eligible voters from the registration rolls for certain federal elections.” Clarke added that the DOJ “will continue to use all of the tools provided by federal law . . . to . . . protect every qualified American seeking to participate in our democracy.”
There have also been a number of other suits filed by various interest groups. If any of these suits reach the Supreme Court, the bill may be upheld, as it faces a very different Court than in 2013. Arizona Republican legislators have called the bill “a fight worth having,” and Governor Ducey invited potential challengers on the left to “have at it.”
HB 2492 is currently slated to go into effect on January 1, 2023.